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CONTEMPT OF COURT POSITION OF BAR AND BENCH

* Dr. A.P. Rajeesh
Introduction
Effective administration of justice depends upon the confidence of the public in the
mechanism. In order to ensure peoples faith in the administration of justice, among others,
unruly criticisms and conducts which denigrate those who are associated to administration of
justice, must be prevented. The purpose of contempt of court law is to retain confidence of the
public in the administration of justice mechanism by preventing unruly criticisms and conducts
which denigrates judges, judicial mechanisms and all those others who are closely associated to
administration of justice. In this regard contempt law serves a difficult task. On one hand, just
like all other institutions, judiciary is also fallible, and criticism is a good measure to correct the
fallible judiciary.1 But at the same time criticisms and conducts which denigrates the judiciary
and which destroys public confidence in the administration of justice mechanism must be
prevented. The article looks into extent of protections given to judicial officers and advocates
under contempt of court laws and judicial response to the protections.
Conducts and criticisms against judges and contempt of court
Under the common law, scandalising the court was treated as the most important form of
criminal contempt.2 Any hostile criticism or conduct against judge as a judge is the basis of this
type of concept.3 Any act done or writing published, calculated to bring a court or judge of a
court into contempt or to lower his authority can be treated as its general ingredient. 4 The
rationale for punishing for scurrilous attacks upon the judge is that such attacks cause public
dissatisfaction with the judiciary and the administration of justice, which discourages parties
*B.Sc (Mahatma Gandhi University, Kottayam), LL.B & LL.M (Kerala University, Thiruvanathapuram), Ph.D
(Mahatma Gandhi University), Assistant Professor, School of Indian Legal Thought, Mahatma Gandhi University,
Kottayam
1

See Ambard v AG for Trinidad and Tobago (1936 )1 All E R 704

Arthur E Hughes, Contempt of Court and the Press, LXIII LQR 292, 298 (1900). See also Contempt of Court, A Paper delivered by Madam
Justice Shameem at the Attorney-Generals Conference, December 2004, http://documents.ag.gov.fj/Contempt-Shameem.pdf. Last visited on 2808- 2013.
3
Sam S. Gill, Contempt of Court by Publications, 24 Cal L R 114, 114 (1935). It is to be further remembered that scandalising the court has
nothing to do with personnel attack upon the judge. Any personal attack upon the judge, unconnected with the office he holds, is dealt with under
the ordinary rules of slander and libel. Arthur L. Goodhart, Newspapers and Contempt of Court in English Law, 48 Harv L Rev 885, 898 (1935),
See also Samaradithya Pal, The Contempt of Courts Act, 1971 34 (Law Research Institute Calcutta 1992).
4
R v Gray [1900] 2 Q.B.36, 40. See also BMJ Publishing Group, Contempt of Court, 285 Bri M J 657, 657 (1982). When the judiciary as such or
a Judge in particular is attacked and the attack contains various kinds of imputations, such contempt is treated as scandalising the court.
V.Venkatesan, What constitutes scandalising the court, http://www.cscsarchive.org/dataarchive/otherfiles/UGDCM2-131/file. Last visited on 2808- 2013.
2

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from bringing rightful claims to the courts, and ultimately leads men to take the law into their
own hands.5 To attract this type of contempt it is necessary that the publication or conduct must
affect the confidence of the public in the administration of justice mechanism.6 It is well
accepted that the punishment for this type of contempt is inflicted not for protecting judiciary or
the individual judge of the court but for protecting the public as a whole and especially those
who either voluntarily or by compulsion are subjected to the jurisdiction of the court, from the
mischief they will incur if the authority of the court is undermined or impaired.7 The link
between scandalising the court and keeping the confidence of the public in the administration of
justice was highlighted in R v Almon.8 In this case, the court observed that scurrilous attacks
upon the judges excites in the minds of the people a general dissatisfaction with all judicial
determinations, and indisposes their minds to obey them. 9
The importance of retaining public confidence in the administration of justice by
protecting judiciary from unwanted criticisms and use of contempt power for this purpose was
recognized in other common law countries also. Thus in Gullagher v Durack,10 the Australian
High Court pointed out that the authority of law rests on public confidence, and it is important to
the stability of society that the confidence of the public should not be shaken by baseless attacks
on the integrity or impartiality of courts or judges.11
However, all criticisms against judiciary or judges would not amount to contempt of
court. It is well recognised that the criticisms serve the purpose of making the judiciary more
healthy and strong.

12

Thus on the one hand criticisms against the judges, judiciary and judicial

decisions are to be permitted and promoted and at the same time the criticism shall not be
permitted to affect the dignity, authority and peoples confidence in the administration of justice.

The University of Chicago Law Review Association, Free Speech vs. The Fair Trial in the English and American Law of Contempt by
Publication, 17 U Chi L Rev 540, 543 (1950).
6
The Michigan Law Review Association, Criticism as Contempt, 28 Mich L Rev 616, 616 (1930).
7
Lord Hailsham, 9 Halsburys Laws of England 21 (Butterworths London 4th ed. 1997). See also Gullagher v Durack (1983) 152 CLR 238. In
this case it was observed that there were criticisms that summary power may sometimes be used in an unwise manner, but a single, not very
serious, case hardly justifies the suggestion that a fundamental change in the law is required. Arthur L. Goodhart, Newspapers and Contempt of
Court in English Law, 48 Harv L Rev 885, 904.
8
97 ER 94, excerpted in C.J. Miller, Contempt of Court 568 (Oxford University Press London 2000).
9
97 ER 100, excerpted in Miller, Ibid.
10
(1983) 152 CLR 238.
11
Id at 243.
12
Andre Paul Terence Ambard v The Attorney General for Trinidad and Tobago, [1936] 1 All ER 704, 709

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The test in each case is, whether the criticism exceeds reasonable limit and affect the
dignity, authority and confidence of people in the administration of justice.13 Applying this test
in Ambard v A.G for Trinidad and Tobago14 Lord Atkin observed thus:15
The path of criticism is a public way: the wrong headed are permitted to err therein: provided that
members of the public abstain from imputing improper motives to those taking part in the
administration of justice, and are genuinely exercising a right of criticism and are not acting in
malice or attempting to impair the administration of justice, they are immune.

Though scandalising the court by criticizing the judge is an important category of criminal
contempt, it forms a very delicate area for the reason that in such situations prime consideration
is given to identify whether the criticism is against the judge in his official capacity distinguished
from his individual capacity.16 Under the common law it is well settled that the proceedings
under this head is not for the personal protection of judges but to ensure the public confidence in
the administration of justice.17 Thus in Rex v Almon,18 it was observed that in a contempt
proceeding it is not their (judges) own cause, but the cause of the public which they are
vindicating at the instance of the public.19
Generally whether the abuse against the judge amounts to contempt or it only amounts to
defamation against the concerned judge is assessed by determining whether the criticism is made
against judge as a judge or against judge as an individual. If the criticism is against the judge as
an individual, however serious the criticism may be and even if the words are vitiated with
malice, improper motive etc, no contempt proceeding is maintainable20. However, once the
criticism is found to be against the judge as a judge in discharge of his official duties, it would
amount to scandalising the court and the same could be treated as contempt of court21.

13

Andrew Beck, Trial of a High Court Judge for Defamation, 103 LQR 461, 475(1987).
[1936] 1 All ER 704.
Id at 709.
16
It is considered that contemptuous conduct toward the judges in the discharge of their official duties, tending to defeat the due administration of
justice, is more than an offense against the person of the judge; it is an offense against the people's court, the dignity of which the judge should
protect, however willing he may be to forego the private injury. E. R. S., Constructive Contempt of Court, 22 Mich L Rev 361, 361 (1924).
17
George Stuart Robertson, Oswalds Contempt of Court 11 (Hindustan Law Book Co. Calcutta 3rd ed. 1993).
18
1765) Wilmots Notes. 243, excerpted in V.K. Mehrotra, V.G. Ramachandrans Contempt of Court 459 (Eastern Book Company Lucknow 6th
ed. 2002).
19
Ibid.
20
See Badry v Director of Public Prosecution of Mauritius, (1982) 3 All ER 973.
21
See Mc leod v St. Aubyn, (1899) A.C. 549
14
15

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Imputations of corruption, bias, improper motives or partiality against a judge are the
common forms scandalising the court. Thus in Chokolingo v A.G of Trinidad and Tobago,22
unfounded allegations of corruption made against a judge was treated as contempt by
scandalising the court.23 Further allegation that judges were influenced by political, religious or
racial reasons might also be treated as scandalising the court24.
The contempt law is used to deal with criticisms and conducts against judges for the
reason that they are channels of administration of justice. If the judge assumes any other
position, the criticism against him or conduct against him in his new capacity would not amount
to contempt of court. However, though theoretically contempt by scandalizing the court exists
under English law, now a day the English courts are rather reluctant to punish somebody for
scandalizing the court. Since the 1930s the first such case that came before the court was R. v.
Metropolitan Police Commissioner, ex p. Blackburn (No. 2)25. In this case, though the Court of
Appeal recognized its power to invoke sanctions for contempt in appropriate cases, felt that this
jurisdiction must "most sparingly" be exercised.26 The present approach of tolerance shown by
English judges is based on the thinking that an imposed silence is incompetent to enhance public
respect to administration of justice mechanism. Thus in Defence Secretary v. Guardian
Newspapers,27 Lord Diplock observed that the species of contempt which consisted of
scandalising the judges was virtually obsolescent in England and might be ignored.28 The
present attitude of English courts, regarding contempt by scandalising the court is expressed in
Ahnee & Ors v. Director of Public Prosecutions.29 In this case the Court observed thus-:30
The offence of scandalising the court was reasonably justifiable in a democratic society: In
England such proceedings are rare and none has been successfully brought for more than sixty
years. But it is permissible to take into account that on a small island such as Mauritius the
administration of justice is more vulnerable than in the United Kingdom. The need for the offence
of scandalising the court on a small island is greater.
22

(1981) 1 All ER 244.

A box heading to the story contained that: the old was bend on exposing bribery, corruption and fraud in the household. Id at 246.
24
See New Statesman (Editor) ex. P. Director of Public Prosecution, (1928) 44 TLR 301 excerpted in Miller, Contempt of Court at 574(cited in
note 8)
25
[1968] 2 Q.B. 118.
26
It was observed by the Court of Appeal that any comment criticizing judiciary and judicial decisions should keep within the limits of
reasonable courtesy and good faith. This observation was criticized and it was argued that dividing line between what is and what is not
contempt remains hazy and scarcely the most appropriate issue for determination without a jury. See D. G. T. Williams, Contempt of Court, 27
CLJ 9, 10, 10(1969).
27
(1985) 1 A.C. 339.
28
Id at 347.
29
[1999] 2 WLR 1305.
30
Id at 1313.
23

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Thus contempt of court by scandalizing the judge as a judge or by conducts against the
judge is getting diluted and contempt by scandalizing the court has turned to be obsolete under
the present English law31.
Indian approach
Unruly criticisms or conducts against judge as a judge is recognized as a serious form of
contempt of court in India also. Thus in State v Vikar Ahmad,32 it was observed that scandalising
the court by attacking judges forms one of the important forms of contempt of court. 33 Similarly,
in Advocate General Andhra Pradesh v Ramana Rao,34 the contemnor criticized the judgment
using words like Reddy Justice, Courts Under the Reddy Raj etc. The publication was treated
as having the tendency to interfere with the authority of courts and thus leading to scandalising
the court.35 Further a publication which contained serious allegation regarding the integrity,
ability or fairness of the presiding officer may be treated as having a scandalising effect on
court.36 The issue was more seriously considered in Perspective Publications (P) Ltd v State of
Maharashtra.37 In this case even an indirect imputation of dishonesty was found lowering the
authority of the court and could lead to contempt by scandalising the court 38. As in other
common law countries, in India also, to attract contempt by scandalising the court, the distinction
between judicial function and executive function exercised by judicial officers is important39.
Further in Broma Prakash Sharma v State of Uttar Pradesh,40 it was decided that contempt is
something more than defamation and is of a different character.41 The real distinction between
contempt of court and defamation of a judge lies in the fact that, contempt is really a wrong done
to the public by weakening the authority and influence of courts of law which exist for their
benefit and defamation of a judge has nothing to do with public good or administration of
justice.42

See T. R. Andhyarrujina, Scandalising the Court is it Obsolete? (2003) 4 SCC (J) 12.
AIR 1954 Hyd. 175.
Id at 177. See C. Ravichandran Iyer v Justice A.M. Bhattacharjee, (1995) 5 SCC 457, 477, see also B.K.Lala v R.C.Diruntt, AIR 1967 Cal.
153
33
AIR 1954 Hyd. 175.
34
AIR 1967 A.P. 299.
35
Id at 304.
36
State of Rajasthan v Shyam Narain Moriya, 1973 Cr L J 1340, 1342.
37
AIR 1971 SC 221.
38
Similar view was taken in Dr. D.C. Saxena v Chief Justice of India, (1996) 5 SCC 216 and P.N. Duda v Shiva Shankar and others,(1988) 3
SCC 167
39
See Rex v B.S. Nayyar, AIR 1950 All. 549, 551.
40
AIR 1954 SC 10, see also Bathima Ramakrishna Reddy v State of Madras, AIR 1952 SC 149.
41
Brama Prakash Sharma v State of Uttar Pradesh, AIR 1954 SC 10, 14.
42
In the matter of Basantha Chandra Ghosh, AIR 1960 Pat. 430, 446.
31
32
33

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The test is whether impugned publication is a mere defamatory attack on a judge or

whether it is calculated to interfere with the due course of justice or the proper administration of
law.43 It is only in the latter case, it is punishable as contempt. Alternatively the test is whether
the wrong is done to the judge personally or it is done to the public.44
There are instances where police officers were punished for contempt of court for their
misbehavior against judge as a judge. Thus in Delhi Judicial Service Association Tis Hasari
Court Delhi v State of Gujarat and others45, the conduct of the police officers including
arresting, hand cuffing and charging fictitious cases against a judicial officer on his visit to a
police station was found to be serious instance of contempt of court. Similarly in Arun Paswan
S.I v State of Bihar,46 some police officers assembled near a District Court and raised abusive
slogans against the District Judge and created pandemonium in court premise for some of the
action taken by the District Judge against a police officer.47 The conduct was treated as
scandalising the court and punishments were imposed.48
Similarly obnoxious behaviors on the part of lawyer against judges even within the court
room are treated as contempt of court. Thus In re Vinay Chandra Misra49 the conduct of abusing
a judge by a senior lawyer for not getting the desired decision was treated as contempt of court50.
Much serious was the conduct of a lawyer against the presiding officer in R.K. Garg v State of
Himachal Pradesh.51 In this case, getting unhappy with the decision taken by the judicial officer,
the contemnor advocate hurled his shoe against the judge. The High Court of Himachal Pradesh
held the appellant lawyer liable for criminal contempt of scandalizing the court and was punished
to undergo imprisonment as well as to pay fine52.

43

Ibid.
It seems that the principle in this regard is that judgment can be criticized but, judges who delivered the judgment cant be criticized.
Conscientious Group v Union of India and others, 1987(supp) SCC 170.
45
(1991) 4 SCC 406.
46
(2004) 5 SCC53.
47
Id at 58.
48
Different punishments were imposed on the contemnors. The key contemnor Arun Paswan was sentenced to undergo two months simple
imprisonment. The second appellant was sentenced to pay a fine of Rs 1000 and in default, to undergo simple imprisonment for fifteen days.
49
(1995) 2 SCC 584.
50
The contumacious conduct was verbal abuse against the presiding judge unhappy with some orders passed by the judge in a case in which the
contemnor was appearing as a lawyer.
51
(1981) 3 SCC 166.
52
The Himachal Pradesh High Court sentenced the contemnor to undergo six months imprisonment and a fine of Rs. 200. Supreme Court though
upheld the conviction held that the contemnors apology was genuine and reduced the sentence of six months imprisonment to a period of one
month and enhanced the fine from Rs. 200 to Rs.1000. Id at 167.
44

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In C. Ravichandran Iyer v Justice A.M. Bhattacharjee and another 53, even resolutions
passed by Bar Associations against judicial officers attributing partiality, corruption
incompetency etc were treated as clear case of contempt of court.54
The Supreme Court of India is also vigilant in protecting judicial officers of lower courts
and tribunals against unruly criticisms and conducts which adversely affect public confidence in
the administration of justice. Thus though the High Court can initiate contempt proceedings for
contempt committed against lower courts and tribunals under Article 215 of the Indian
Constitution55 and under the Contempt of Courts Act, 197156, the word including found under
Article 129 which empower the Supreme Court to initiate contempt committed against itself was
broadly interpreted to mean including lower courts and tribunals also 57. Thus it was decided that
in appropriate cases Supreme Court can take contempt proceedings for contempt committed
against lower courts also. It was also decided that in such a proceeding the maximum punishment
mentioned under the Contempt of Courts Act has no application58.
Position of judges
It is not solely an outsider who could be held liable for contempt by scandalizing the
judge as a judge. Even a judge could be held liable for contempt, if the confidence of public is
adversely affected by his conducts or publications59. Thus, in Shri Baradakanta Mishra v
Registrar of Orissa High Court60, unruly criticism made by District Judge against High Court
53

(1995) 5 SCC 457

See also U.P Sales Tax Service Association v Taxation Bar Association Agra and others, (1995) 5 SCC 716.
55
Article 215 of the Indian Constitution reads-: High Courts to be courts of record. - Every High Court shall be a court of record and shall have
all the powers of such a court including the power to punish for contempt of itself.
56
Section 10 of the Contempt of Courts Act, 1971 reads- Power of High Court to punish contempts of subordinate courts.- Every High Court
shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of
courts subordinate to it as it has and exercise in respect of contempts of itself:
Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it
where such contempt is an offence punishable under the Indian Penal Code, 1860 (45 of 1850).
57
See Delhi Judicial service Association v State of Gujarat, (1991) 4 SCC 406, see also In Re: Vinay Chandra Misra (1995) 2 SCC 584, Supreme
Court Bar Association v Union of India, AIR 1998 SC 1895, Leila David (6) v State of Maharashtra and others, (2009) 10 SCC 337.
58
See In Re: Vinay Chandra Misra (1995) 2 SCC 584. In his case punishment was suspension of sannad of the contemnor lawyer. Though this
punishment was found to be not maintainable in Supreme Court Bar Association v Union of India, AIR 1998 SC 1895, the decision was on the
ground that suspending a professional from his service is not a recognized form of punishment either under common law or under statutory law.
The decision indirectly indicates that any punishment which could be imposed under the common law or under statutory law could be imposed by
the Supreme Court disregarding the Contempt of Courts Act when a contempt proceeding is initiated by the Supreme Court under Article 129 of
the Indian Constitution. See also Zahira Hasibullah Sheikh (5) and another v State of Gujarat & others, (2006) 3 SCC 374. In this case the
punishment was one year simple imprisonment in a proceeding for contempt of court initiated under Article 129 of the Indian Constitution,
though under Section 12 of the Contempt of Courts Act the maximum punishment is limited to six months simple imprisonment.
59
S. 16 of the Contempt of Courts Act, 1971 reads- Contempt by Judge, magistrate or other person acting judicially: - (1) Subject to the
provisions of any law for time being in force, a Judge, magistrate or other person acting judicially shall also be liable for contempt of his own
Court or of any other Court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply
accordingly.
60
(1974) 1 SCC 374. In this case for gross indiscipline, the appellant District Judge was suspended from service and directed to file reply to the
charges. Id at 384. The contents of the reply formed the basis of the contempt proceeding. Subsequently the reply submitted by the appellant to
the notice in contempt proceeding also contained serious allegations including malafides, bias, and mysterious conducts of the judge in initiating
contempt proceeding. Id at 387. This reply was also treated as contempt of court and the contemnor was punished to pay a fine of Rs. 1000 with
three months imprisonment in default of payment. Id at 413.
54

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judge, was treated as conducts which affect confidence of the public in the administration of
justice and treated as contempt of court. The conclusion which could be drawn in this regard is
that, if anything is done against a judge as a judge which will adversely affect public confidence
in the administration of justice, the same would be treated as a case of contempt of court
irrespective of whether the criticism or conduct is by lawyer, police, public or by yet another
judge.
Public confidence in the administration of justice and position of lawyers
The role of lawyers in the administration of justice mechanism cannot be taken lightly61.
It is well settled principle that Judges and lawyers form two sides of a coin in the administration
of justice62. Thus if something done against judge as a judge would amount to contempt of court
for the reason that the same could affect confidence of the public in the administration of justice,
the conducts or criticisms against lawyers which affect public confidence in the administration of
justice mechanism must also amount to contempt of court. The test shall not be whether the
criticism or conduct was against judge or lawyer but whether the confidence of public was
adversely affected by the criticism or conduct. It may be true that the same criticism which
amount to contempt of court if made against a judge may not amount to contempt of court if
made against a lawyer. However, there is a point where criticism or conduct against lawyer
would also amount to contempt of court. Under the common law it was well settled that conducts
against lawyer which adversely affects public confidence in the administration of justice
mechanism would amount to contempt of court63. But gradually by the decline of contempt by
scandalizing the court in common law64, the concept of contempt by scandalizing the judge and
contempt by scandalizing the lawyer had turned to be only of theoretical significance in English
law. However, the position in India is different. In India, scandalizing the court forms the most
important category of contempt even now. In such a situation, the pertinent question is how far
contempt by scandalizing the court is applicable to conducts and publications against lawyer as
lawyer which affects public confidence in the administration of justice.

61

Hargovind Dayal Srivastava and another v G.N.Verma and others, AIR 1977 S.C 1334, 1335
Harish Chandra Misra v Justice S.Ali Ahmed, AIR 1986 Pat. 65, 77. See also Ex. Capt. Harish Uppal v Union of India, (2003) 2 SCC 45.
See Re Johnson, (1987) 20 QBD 68. In this case it was observed that those who have duties to discharge in a court of justice are protected by
law, and shielded on their way to the discharge of such duties, while discharging them, and on their return there from, in order that such person
may safely have resort to courts of justice.
64
In England the last occasion when a publication was held to be in contempt by scandalising the court was as early as in 1931in R v Colsey; Ex
p. Director of Public Prosecutions, (1931) (The Times News paper May 9, 1931) cited in 47 LQR 315, 315 (1931). Similarly in Ahnee & Ors v.
Director of Public Prosecutions, [1999] 2 WLR 1305, it was pointed out that in England proceedings for contempt by scandalizing the court are
rare and none has been successfully brought for more than sixty years. Id at 1313.
62
63

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Criticism against lawyer as lawyer and application of contempt laws - Indian position
The question regarding application of contempt law for conducts and publications against
lawyer as a lawyer was considered in Anthas lal Singh v A.H.Watson65. In this case, following
the common law, Calcutta High Court observed that publications casting untrue aspersions
against a lawyer regarding discharge of his duty would certainly have the effect of tending to
deter the advocate from continuing with his duties and embarrassing him in the discharge of his
duties. It was also observed that a comment upon an advocate which has reference to the conduct
of the cases may amount to contempt66. Similar view was taken by the Madras High Court in
Medai Dalvoi K.Thirumalaiappa v Medai Delavoi T. Kumarawami.67 In this case it was observed
that counsels form an integral part of machinery of administration of justice and are officers of
court. Any abuse, insult or aspersions cast on him in the course of discharge of his duties which
might have the effect of deterring him from continuing to discharge his duties would tend to
hamper or interfere with the administration of justice and the same would amount to contempt of
court.68 The judgment recognized that misconducts against a lawyer as lawyer could adversely
affect administration of justice and peoples faith in the mechanism and the same could lead to
contempt of court. The view adopted by the Courts in this regard was laudable for the reason that
judicial mechanism cannot function without recognizing the role of lawyers and if misconducts
or criticisms against judge as judge would amount to contempt by scandalising the court,
misconduct or criticisms against lawyer as lawyer which could adversely affect public
confidence in the administration of justice mechanism would also amount to contempt69.
In spite of the above mentioned decisions, the general approach of the judiciary with
respect to the application of contempt power when criticisms or conducts affect lawyer as lawyer
is not satisfactory. A good example is the decision of Rajastan High Court in Rajasthan Bar
Council v Nathuram70. In this case, a counsel was conducting a criminal case in a magistrate
court. While in the middle of the case, when the counsel went out for a few seconds, the
respondent sub inspector arrested, handcuffed and took the lawyer away. It was argued that
counsels were exempted from any arrest while in court or in the precincts of the court and that if
65

AIR 1931 Cal. 257.

Id at 259.
AIR 1956 Mad. 621.
68
Id at 625.
69
Similar approach was taken in some other cases also see Mohamed shafees case, AIR 1949 Lah. 270, Singh v Singh, AIR 1954 SC 186, In Re.
Tulasidas Amamal Karani, AIR 1941 Bom. 228.
70
AIR 1956 Raj. 179.
66
67

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any arrest was made in such circumstance it would diminish public confidence in the
administration of justice and thus the same would amount to contempt of court.71 Rejecting the
argument that the arrest of the counsel in the precincts of the court would amount to contempt,
the Court observed that the argument is too sweeping and could not be accepted as a correct
statement of law.72 However, in the present case, the Court observed that as the counsel was
conducting a criminal case, the arrest amounted to an actual obstruction of judicial duties
performed by the presiding officer and thus the same would amount to contempt of court.73
Though the conduct was found to be contempt, the ratio laid down in this case could not be
accepted fully. There is no doubt that when a lawyer is prevented from discharging his duties
before a court, or if he is arrested in the precincts of the court when he is involved in his duties as
a lawyer, public confidence in the administration of justice would be affected. If the conduct
affects public confidence in the administration of justice, irrespective of whether it was
committed against judge or lawyer, the same would amount to contempt of court. But in the
present case, arrest of the lawyer was treated as contempt of court for the reason that the same
amounted to obstruction of judicial duties performed by the presiding officer. Thus instead of
appreciating arrest of lawyer while he was conducting a case as contempt of court the matter was
appreciated in the stand point of conducts which obstruct judicial duties performed by presiding
officer. It is submitted that the matter would have been appreciated for obstruction of judicial
duties performed by a lawyer as a lawyer.
The double stand of judiciary regarding criticism against lawyer and judge is again clear
from the decision of In re Hadi Husain v Nasir Uddin Haider74. In this case scurrilous abuses
were made through pamphlet against a judge who decided the case and a lawyer who appeared in
that case on behalf of a party. The pamphlet alleged that judge was influenced by extraneous
considerations such as receiving monitory gratification. Similar allegations including receiving
bribe from the opposite party was made against the lawyer also. In the contempt proceeding,
allegations against the lawyer were found not contempt, for the allegations were not during the
trial of the case but after its termination.75 Though the allegation against the judge was also made
after the termination of the proceeding, the same was found to be scandalising the court leading
71

Id at 182.
Id at 183.
Id at 184. The contemnor was punished to pay a fine of rupees hundred and in default of payment of fine sentenced to undergo simple
imprisonment for one month. Id.
74
AIR 1926 All. 623.
75
Id at 628.
72
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to contempt.76Similarly in Homi Rustomji Pardivala v Sub Inspector Braig,77 arresting a lawyer

when he was proceeding to court to a file a petition was treated as not a case of contempt. The
reason for the decision was that the Sub Inspectors act was not intended to interfere with
administration of justice.78 However, in Red Light on the Cars of the Honble Judges of High
Court v State of U.P.79, it was held that stopping the Judges who were going to attend the court
were not only causing inconvenience to judges but lowering their dignity in the public esteem
and lead to contempt by scandalising the court80.
However, a hope of silver ray was casted by the Supreme Court in this regard in Tarun
Bharat Sangh, Alwar v Union of India and others.81 In this case a senior lawyer of the Supreme
Court, Dr. Rajeev Dhawan was closely related to a case before the Supreme Court filed by one
Tarun Bharat Sangh regarding restraining of mining activity in Sariska Tiger Reserve area. The
lawyer went to Sariska Tiger reserve area to make a spot inspection and for a meeting with the
petitioner organization. The meeting was disrupted and the advocate was abused by some
persons under the dictation and guidance of the respondents. The conduct of the respondent was
treated as contempt as having the effect of interfering with administration of justice. However,
the Court approached the matter lightly and accepted the apology tendered by the respondents
and restrained from imposing heavier punishment except a severe warning82.

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Ibid.
AIR 1944 Lah. 196. From the facts of the case it is clear that the lawyer was arrested to prevent him from appearing in a case for Mr.
Jaiprakash Narayan who was detained under Defence of India Rules.
78
Id at 203. See also Sukh Dayal v Firm Govinda Mal Nandlal, AIR 1944 Lah. 169.
79
AIR 1993 All. 211.
80
Id at 219.
81
(1995)1 SCC150.
82
Id at 155.
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Conclusion
The contempt by scandalizing the court is based on the need of retaining public
confidence in the administration of justice. Conducts and publications against judge as judge
would amount to contempt of court for the reason that they are channels of administration of
justice. The judiciary is jealously protecting the judges by invoking the contempt power when
the conduct or publication is against the judge as a judge on the ground that such conducts and
publication will diminish public confidence in the administration of justice mechanism. A lawyer
has also got an important role in the administration of justice. Conducts and publications against
lawyer as lawyer would also affect the faith of the people in the administration of justice
mechanism. In such a situation the conduct and publication against a lawyer as a lawyer which
adversely affect public confidence in the administration of justice mechanism must also be
treated as contempt of court. But unfortunately the situation is not taken seriously. It is high time
for the judiciary to come out from this double stand. There is no meaning in preaching the duties
and responsibilities of lawyer without recognizing the status of a lawyer. A healthy Bar is a
strong wing of free and fair administration of justice. Thus protecting lawyer as a lawyer is as
important as protecting judge as a judge. The contempt law in this regard is yet to develop in
India.

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